Felt & Tarrant Manufacturing Co. v. Northwestern Egg & Poultry Co.

178 Wis. 552 | Wis. | 1922

Eschweiler, J.

The defendant complains of the action of the trial court in changing the answer to the third question of the special verdict. The jury having found, and the court having sustained the finding, and there is ample evidence to support such ruling, that the plaintiff had deposited in the mail to be forwarded to defendant its written acceptance of defendant’s order before plaintiff had received notice of the cancellation, no question is here raised that the contract between the parties was not then and thereby completed and in effect.

The contract having thus been established, the burden was then upon defendant to show that notice of its cancellation of the order had been received by plaintiff prior to its delivery of the machine to the express company for carriage to the defendant.

The evidence defendant offered on this point from the writer of the letter dated August 19th and the stenographer to whom it was dictated and by whom written is confusing and very uncertain as to the exact day on which it was written, and still more so as to the time when it was deposited in the mail. It was conceded by plaintiff from its notation on the face of this letter that it was received sometime on Saturday, August 21st. It is undisputed that the comptometer was delivered-to the express company some7 time during the forenoon of the same day. The jury were very much in doubt on this question, as appears from their questions to the court on coming back from their deliberations for further instructions before answering it as they did in favor of defendant’s contention. The trial court, however, felt that the testimony did not warrant such conclusion of the jury and for that reason changed the answer and upon such change judgment necessarily followed in favor of the plaintiff.

An examination of the evidence convinces us that the court did not err in this regard, and such action cannot be disturbed.

Defendant further urged that there was no proper acceptance of this order by the plaintiff according to the condition of the order in that regard. The letter of August 18th set forth in the statement of facts, by plaintiff to defendant, is clearly sufficient as an acceptance.

It is also claimed that by the terms of the contract as well as by the provisions of statute the contract contemplated delivery of the machine at Eau Claire, and it being undisputed that the machine in question did not reach Eau Claire until Monday the 23d, the notice of cancellation reaching Chicago on Saturday the 21st was timely and effective. Such, contract as is here involved comes within the provisions of sub. 1, sec. 1684i — 46, Stats., providing that delivery of goods to a carrier for the purpose of transmission to the buyer is sufficient to constitute a delivery to the buyer. By such delivery the property in the goods passed to the defendant, and upon its refusal to- pay the plaintiff might lawfully maintain an action for the price. Sub. 1, sec. 1684t—63; Engeldinger v. Stevens, 132 Wis. 423, 112 N. W. 507.

By the Court. — Judgment affirmed.